Category Archives: Bar Discipline

More on occupational speech restrictions: I’ve come across this recent piece by Texas A&M law prof Lynne Rambo, dealing with First Amendment issues around judicial speech. Rambo’s article notes that “surprisingly, most of the state and federal courts deciding judicial discipline cases based on extrajudicial speech have not addressed the constitutionality of the code provisions involved.”

No kidding! That’s because there’s been precious little judicial guidance in general when it comes to the tension between the First Amendment and occupational speech restrictions, and next to none where lawyers and judges are concerned (this, despite the law being the most speech-intensive of the licensed professions). Nonetheless, what little there is out there points in the general direction of occupational speech being regulated subject to the same intermediate scrutiny standard applicable to commercial speech.

We also know that occupational speech regulation only goes so far. Lawyers don’t waive their First Amendment rights as a condition of Bar membership; they are free to opine and express themselves any way they want (or at least, to the same extent as any other citizen) as long as doing so doesn’t involve their clients or matters.

But what about judges? Is there something special about their roles that would lend itself to greater reach for occupational speech regulation? Professor Rambo makes the case in the affirmative, arguing that judicial speech – even far off the bench – should be regulated via the Pickering test applicable to public employees.

What’s the Pickering test? It’s a balancing test, which looks at the the interests of the employee in commenting on matters of public concern and the interests of the State – as the employer – in promoting the efficiency of the public services it performs through its employees. It doesn’t apply to things an employee might say as part of his or her job (it’s not a First Amendment violation for a government employer to discipline an employee for those), but rather only to those things a government employee says OUTSIDE of the job that may cause problems for the government employer’s mission.

That’s not much of an issue for most government employees, but it’s different for judges given their position in society. Judges are highly esteemed and viewed as neutral arbiters. The courts are very attuned to ensuring that judges avoid even the appearance of bias. A judge could be highly competent – and a paragon of objectivity – but that judge staking out positions on one “side” or another of contentious issues in the community will cause no end of trouble for the court.

As Rambo notes, the interest of the government employer in the Pickering test is “promoting the efficiency of the public services it performs through its employees.” She suggests that in the judicial context this means something more: protecting the judiciary from extrajudicial statements by judges that compromise “either the actual or the perceived independence, integrity or impartiality of the court.”

That sounds right, particularly since the “efficiency” of the government institution that is the court is best measured not by how quickly it churns through cases but rather by how independent and impartial it can be – both in reality AND appearance. And that means that judges – unlike lawyers – may be subject to occupational speech regulation that reaches far beyond the confines of the courtroom.

It’s not too early into the Trump administration to call it: this is a group that’s got very little regard for the truth. And that’s even by the low standards of political spin – we’ve got plenty of examples, already, of out-and-out gaslighting. Chief among the lying liars in the administration has been White House “Senior Counselor” Kellyanne Conway, who done everything from puff the (anemic) size of Trump’s inauguration crowds to shill for his daughter’s clothing line.

In response, a group of law professors has filed a grievance against Conway seeking professional discipline against her in Washington, D.C., where she is licensed as a lawyer. The complaint relies upon the famously broad language in Rule 8.4(c), which proscribes “conduct involving dishonesty, fraud, deceit or misrepresentation.”

Loathsome as I find Conway’s approach, I am similarly appalled at this grievance. I mean, I could see some wingnut lawyer filing a grievance against Conway, but over a dozen law professors? Who should know better?

While there are many issues with this grievance, I just want to focus on two macro-points, one legal and one practical.

The Legal Objection

Like many of the Rules of Professional Conduct, Rule 8.4(c) appears to be written by people with little understanding of the First Amendment. First there’s the bit about “conduct,” which sort of dodges the question about whether this is dealing with matters purely of speech or only “speech as conduct,” a famously messy area that was dealt with just last week by the 11th Circuit in striking down Florida’s limitation on doctors asking patients about firearms ownership.

More objectionable is the failure to tie this broad prohibition on lying to the actual practice of law. While the outer bounds of the state’s ability to limit speech in the professional realm is uncertain, here are two propositions that clearly lie on opposite sides of that boundary:

Well within the power of the state to regulate: Requiring that attorneys not lie in the course of representing clients.

Well outside the power of the state to regulate: Requiring that attorneys not lie, ever.

There is a first amendment right to lie, and we attorneys don’t forfeit it just because we get licensed. This is a straightforward legal principle, and the law profs’ grievance fails on this front right out of the gate.

The Practical Objection

I was going to say “like it or hate it, we all have a right to lie.” But really, if you hate the fact that we have the right to lie, you haven’t given it enough thought. Having the right to lie doesn’t mean we have the license to do so, or that lying should be socially acceptable. It means simply this:

We are not going to let the government be the arbiter of truth.

Many of the law profs who brought the grievance would likely object “but Conway is in an important position of power and influence; she may be working as a lawyer (i.e., an active “representation”), and because of how Big of a Deal this is we need to push it forward.”

But it is for precisely this reason that we shouldn’t push edge cases. We don’t want the government calling balls and strikes in matters of public discussion. That’s a straight path to censorship. The first amendment and freedom of discourse needs a lot of breathing room, as even the implication of regulatory action will cause many to clam up.

No, not Kellyanne Conway, of course (although the social virtues of lie-shaming seem to have set in, as the cable news outlets have tired of her act). But how about everyone else? My practical objection to this grievance is that if it gets any traction, what does that mean for any other lawyer who wants to speak out on matters of public import? Or, closer to home, what if someone wants to start policing the many words – again, outside of any representation – that these law professors no doubt spill publicly on any number of subjects?

Hopefully, the D.C. Bar will do the right thing and dismiss this grievance quickly and decisively.

Brian Faughnan has the details, but here’s the quick overview: A Colorado attorney agrees to help out his in-laws, who are dealing with a debt collector in their home state of Minnesota. Like a good son-in-law, he does it for free. He engages in a series of emails with the attorney for the creditor, who eventually (because shaking people down for small-time debts isn’t enough to satisfy his “I’ve gotta be an asshole” jones) files a bar grievance against the Colorado lawyer. Colorado lawyer ends up being disciplined by the Minnesota Bar authorities for the unlicensed practice of law, a decision which is subsequently upheld by the Minnesota Supreme Court.

Where to begin? Brian and other ethics mavens have already focused on the troubling retrograde nature of this decision, applying antiquated notions of the practice of law to modern communications norms. But I want to focus on three other fundamental problems with this decision:

Defining “The Practice of Law:” As I’ve noted before, lawyer regulation has some fundamental First Amendment problems. This is particularly true with respect to “legal advice.” The prohibition on non-lawyers providing legal advice is a content-based speech restriction, and those almost never survive a constitutional challenge.

In this case, Minnesota had the multi-jurisdictional practice statute to rely on; that rule explicitly limits out-of-state lawyers, and thus provides a thin facade to conceal an otherwise-suspect rationale. But what if the son-in-law hadn’t been a lawyer? More on that in a moment.

“Holding Out:” Much is made, too, of the argument that the Colorado attorney was “holding out” as the lawyer on a Minnesota legal matter. But this doesn’t survive scrutiny. The “holding out” indictment is based solely on the fact that the Colorado lawyer stated that he “represented” his in-laws. Yet restrictions on “holding out” as a lawyer are intended to apply to a specific set of practices that are harmful to consumers (i.e., pretending to be licensed as an attorney when you are not, in an effort to solicit business) – not to whatever this was. 1

And again, what if the Colorado lawyer hadn’t been an attorney? Would the disciplinary authorities have been able to argue that his statement of representation evidenced “holding old?” As with the definition of the “practice of law,” the only thread holding this together is the fact that the son-in-law was a lawyer. Had he NOT been a lawyer, the state would have been left with a difficult argument: that people can’t help each other out with informal legal advice and advocacy unless they are in-state-licensed attorneys.

Which, come to think of it, is actually what most attorneys believe anyway. But I’m pretty confident that proposition would lose if challenged on First Amendment grounds.

Antitrust: The discipline in this case was imposed by a 6-member panel of the Minnesota Lawyers Professional Responsibility Board. The Board is comprised primarily of Minnesota lawyers. The discipline was then affirmed by the Minnesota Supreme Court, using a “clearly erroneous” standard.

This is a problem for the Board. Imposing discipline on non-market participants to maintain a government-sanctioned monopoly is the definition of anti-competitive behavior. And while quasi-government boards made up of market participants used to receive antitrust immunity, they don’t anymore (thanks to the North Carolina Dental Board case) unless they are “actively supervised” by the state. Judicial review – especially judicial review based on a highly deferential standard like that used here – is not within shouting distance of “active supervision.” While this issue wasn’t brought up in this case, it’s something Minnesota should think about if it plans to keep having other attorneys handle disciplinary decisions – and particularly when those decisions involve excluding competition from the market for legal services.

Notes:

Let’s call it pedantry: “The out-of-state lawyer stated that he represented an in-state party. In-state parties can only be represented by in-state attorneys. Ergo, he is “holding out” as an in-state attorney.” ↩

Earlier this year, Avvo rolled out Avvo Legal Services, our fixed-price packages for consumers and small businesses, fulfilled by local attorneys. We put a lot of thought into this product, how it would meet consumer needs, and how it could comply with the Rules of Professional Conduct to which lawyers are bound.

Our guiding principle in building Avvo Legal Services? Making them as consumer-friendly as possible. Our thought was that by so doing, the RPC issues should take care of themselves. As the RPCs are all about consumer and client protection, they shouldn’t be implicated by practices that don’t harm those people – right?

Right.

But one obstacle to this approach is a pervasive mindset of “rigid” or “mechanical” compliance that persists with the RPCs. Many attorneys want “safe harbor” guidance from the Bars on what complies with the rules. To respond to this need, many state Bars provide ethics opinions upon request. Such opinions are typically non-binding, but can carry some weight in a subsequent disciplinary proceeding.

Little surprise, then, that such opinions typically take the most conservative viewpoint possible. In most cases, the bars will broadly apply the rules, with no regard whatsoever for the first amendment implications or whether their interpretation is materially advancing the interests of consumers.

Indeed, in some cases the regulators explicitly state that their opinion does not take into account any first amendment factors. See, e.g., the last line of South Carolina Ethics Opinion 09-10. 1

If the Bars are serious about expanding access to legal services and information, one change they could make right away is to get out of the ethics opinion business – at least with respect to lawyer advertising. By discouraging new legal service offerings and disseminating information about legal services, the Bars are gravely mistreating the public they are ostensibly charged with serving and protecting.

And it’s not just me railing about this. The Supreme Court addressed a very similar system – that used by the Federal Election Commission – in the landmark 2010 Citizens United case. 2 Remarkably, the words chosen by the Court in Citizens United to describe the FEC’s advisory opinion process could just as easily apply to the process used by many state attorney regulators:

“Because the FEC’s “business is to censor, there inheres the danger that [it] may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U.S. 51, 57-58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” [citations omitted]. Consequently, “the censor’s determination may in practice be final.” Freedman, supra, at 58, 85 S.Ct. 734.

Despite the approach of some Bars, there’s simply no way to interpret the rules regarding attorney speech without considering the first amendment. Those bars that explicitly fail to do so are exacerbating the censor’s veto, hurting consumers, lawyers and the interests of free expression. There’s no question that such opinions cause many attorneys to simply abstain from providing information about the services they offer, preventing the consumers the Bar is supposed to serve from receiving information that may be vitally important to them.

Until and unless the Bars start doing away with the advisory opinion practice, attorneys who wish to really honor their commitment to serving the public should disregard these opinions. By understanding how the commercial speech doctrine works, such attorneys can confidently determine for themselves, independent of Bar input, where the rules apply and where they don’t.

Notes:

And let’s keep picking on South Carolina, since they just issued an ethics opinion that seems to take aim at Avvo Legal Services: sometimes these opinions directly contradict one another. Compare the treatment of Rule 5.4 fee-sharing in South Carolina ethics opinion 11-05 vs. the new opinion 16-06. ↩

I love Oregon. I grew up in Bend, went to college in Eugene, and go back to spend time in and on Oregon’s mountains, beaches, and forests every chance I get. It is – in my perhaps-biased-but-well-traveled opinion, the loveliest of our lovely United States of America.

The “ethics crime” complained of? That the lawyers, in advance of being hired, hand-delivered a letter to him offering to meet with Bundy and potentially represent him on a pro bono basis – and that doing so violated RPC 7.3, which limits certain forms of direct solicitation.

Gee, thanks, guys. Pursuing investigations, making the targets have to lawyer up and take the time to explain to the Bar why there has obviously not been a violation, is a horrible waste of everybody’s time and resources (including that of the disciplinary authorities, who could be going after stuff that actually matters).

Even worse, it makes attorneys second-guess whether they can communicate with the public about their services. Many a lawyer doesn’t remotely want to have to deal with responding to a bar complaint, no matter how off-base it is. Every case of Bar overreach like this – where instead of sending the lawyer a cc letter dismissing the complaint the Bar sends an accusatory screed demanding explanations for alleged wrongdoing – makes it that much harder for the public to get access to information about legal services.

When it comes to attorneys speaking out about judges, there are several truths:

Attorneys have a first amendment right to criticize the judiciary, theoretically subject only to a New York Times v. Sullivan-like standard of maliciousness should that criticism cross the line into defamation (see the page on “Criticism of Judges“);

Except if the criticism involves an active case the attorney is involved with, and such criticism creates a material risk of interfering with the proceedings;

But judges are people, too, and some of them are remarkable thin-skinned. They may put you through your paces regardless of the two provisos above.

Which brings us to the case of William Goode. Goode – a peripherally-involved player in a criminal case involving an attorney friend of his – was suspended from federal court practice in the Western District of Louisiana for 6 months. His crime? Publicly criticizing the government’s case after his friend, the criminal defendant, had shot and killed himself.

Goode successfully appealed this discipline, winning because the federal court rule in question was laughably overbroad, operating as a complete bar on any speech related to the trial, the parties, or the issues in the trial.

But it’s hard to muster too much happiness for Goode. He lost a friend, in one of the most painful ways imaginable. And when he publicly expressed his anguish and frustration, he was backhanded by the court for having the temerity to do so. He had to deal with the stressful, expensive process of vindicating himself.

Goode’s case is the living embodiment of the last truth about criticizing judges: your mileage may vary, and you may well be put through the wringer if you choose to exercise your rights.

(The case also illustrates how expansive the “interference with the adjudicatory process” limitation can be. The rule in Louisiana essentially operated as a gag order on anyone “associated” with a matter. Despite not being counsel of record, the 5th Circuit deemed that Goode was “associated” given that he admitted helping his friend’s counsel with trial prep.)

However, I’ve always rather uncritically accepted the notion that there is something fundamentally different about offering advice to a client for a fee. That doing so means you’ve crossed a line where regulation is appropriate.

But I think I’ve been wrong about that.

Why? Because Sherman notes something that is critically important to all media legal specialists. Something I tell lawyers when they get pissed off about Avvo’s publishing profiles of them:

The fact that otherwise-protected speech is “sold” doesn’t make it any less worthy of constitutional protection.

This is the principle that keeps the government from censoring the media, despite the fact that people used to actually pay for newspapers. It’s why rights of publicity can’t stop “unauthorized biographies.” It’s the very clear, often-repeated-by-the-Supreme-Court mantra that economic interest alone is not sufficient to convert free speech into commercial speech (to say nothing of speech wholly devoid of First Amendment protection).

So how can the states prevent – oftentimes on pain of criminal sanctions – nonlawyers from offering paid advice on things like filling out forms, complying with laws, negotiating agreements, and interacting with the government?

The answer seems to be that they can’t.

Notes:

That is, unless they fall into one of a handful of exceptions not relevant here: defamation, child pornography, true threats, etc). ↩

Really interesting decision in the case of Rubenstein v. The Florida Bar, in which federal district judge Beth Bloom granted attorney Robert Rubenstein’s motion for summary judgment against the bar AND enjoined the Bar from further enforcing its rules banning the use of references to past results in many forms of attorney advertising.

Law Practice Advisor has the details, but in reading the decision I was struck by how completely unimpressed Judge Bloom was with the Florida Bar’s position. She absolutely eviscerated the Bar for its utter lack of empirical evidence to support its ban, as well as its failure to consider any more narrowly-tailored remedies.

And for First Amendment law junkies, there’s this: while Rubenstein positioned his case as an “as applied” challenge – which is much easier to win, but has the disadvantage of not extending beyond the particulars of the plaintiff’s case – Judge Bloom took it upon herself to style it as a facial challenge. She then went on to show how the Bar’s rules were fundamentally unconstitutional, no matter how they were applied. BAM!!

This isn’t necessarily the end of these rules, as the state could theoretically rebuild them with proper evidentiary support and deference to their obligation to regulate in a narrowly-tailored way.

This decision is a great step toward a simple yet elusive concept: that Bar regulators should only limit speech where it is necessary to do so, and only to the extent of that necessity.

And ultimately, what’s most damning to the Florida Bar’s position is this: the data shows, unsurprisingly and overwhelmingly, that consumers really want to know what kind of results attorneys get. The Bar should take this message, get out of the way, and let that happen.

I’m always quick to encourage blogging to those lawyers who love to write; I strongly believe it makes you a better lawyer – and one who is more professionally fulfilled to boot. It may even help generate business, but that is a long game.

It’s true that attorneys have fairly wide latitude under the First Amendment to criticize judges (see my “Criticism of Judges” page for more details). But when that criticism totters over the line into defamation, the attorney making the criticism is fair game for bar action.

The facts in the Denison case are complicated, and it’s difficult to tell whether the attorney’s complaints about judicial corruption really meet the test for “public figure” defamation (meaning they must be made maliciously or with reckless disregard for the truth). But the takeaway here, as with most cases of judicial criticism, is that care and diligence are in order when taking judges to task.

Also, because I am regularly railing on attorney regulators for disregarding the free speech rights of attorneys, I must note this: the Illinois Attorney Registration and Disciplinary Commission did an exemplary job of parsing the First Amendment issues in rendering their decision. I can’t say for sure that the facts support their conclusion, but at least the IARDC fully considered the constitutional dimensions.

As lawyers who represent consumers know, the wave of public opinion spilling online via client reviews can be a bit, well, upsetting. Legal services are the fruit of the brow, and often tied up closely in a lawyer’s self-identity. Having someone post an online tirade hits very close to home.

Of course, there’s no reason that legal practices should be held to a different standard than other sorts of businesses, most of which have adapted to – and even improved themselves by virtue of – the world of online user reviews.

And as I tell lawyers, it’s really important to get an objective read on a negative review before flipping out and filing a defamation lawsuit. This isn’t just because there are some unique risks to filing defamation suits not found in most other causes of action. Rather, it’s that lawyers aggrieved by negative client reviews aren’t usually the best judges of whether they actually have an actionable claim.

For example, let’s say a client writes this about you:

She is the most unethical, incompetent lawyer you’ll ever come across. I wouldn’t even call her a lawyer, she’s a FRAUD.

Being on the receiving end of that would feel bad, right? But it’s not defamatory; it’s simply a hyperbolic statement of opinion. Contrary to seemingly widespread belief, “defamation” isn’t “something that someone wrote about me online that I don’t like.” It must be based on a materially false statement of fact.

Of course, since I’m writing about this, you know what happened: the attorney who received the review above – Texas immigration lawyer Sherin Thawer – sued the reviewer.

What makes this noteworthy isn’t just that a thin-skinned attorney filed a baseless defamation claim. It’s not even that she did so in Texas, where the presence of one of the nation’s strongest anti-SLAPP laws means that she’s most likely going to be paying the defendant’s attorney’s fees.

No, the irony here is that the reviewer may have, if anything, gone light on Thawer. Because according to this report, she lied to her client, allowing him to be ruled against in absentia and subjected to a deportation order. Now the Texas disciplinary authorities are going after her for additional sanctions (she is already suspended from the practice of law in Texas).

I don’t know about you, but that would rate a scathing review in my book.